Talk:Works depicting private property limited by privacy and trespass rights don’t meet the requirements of free cultural works

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Consequences for Commons?[edit]

Is this considered a copyright issue, or a non-copyright restriction? Should Commons be creating a template parallel to commons:Template:Nazi symbol? Do we have any intent to apply this German rule to photographs taken in countries not under German law?

Please ping me if responding, I do not maintain a watchlist on meta. - Jmabel (talk) 00:09, 11 April 2020 (UTC)

@Jmabel: This would be a non-copyright restriction. That is, it's not part of the copyright laws in the countries where these kinds of privacy rights exist (in the German example, I believe it's part of their laws for real property such as land and houses). That also means these rules can apply to photos of very old buildings even if the building exterior is outside of copyright protection. That would be the case if the photograph doesn't have permission from the owners and meets all the conditions for privacy protections in the local country. -Jrogers (WMF) (talk) 21:57, 20 April 2020 (UTC)

View from a hotel or restaurant[edit]

A hotel room or a restaurant is on private property, but anyone may visit by paying an appropriate fee. Would this limit cover photographs taken from such a space?

Please ping me if responding, I do not maintain a watchlist on meta. - Jmabel (talk) 00:09, 11 April 2020 (UTC)

@Jmabel: there are lots of ifs and buts here, but generally a hotel room, restaurant or theme park is not a public place. The latter is interesting to keep in mind when considering FoP for sculptures in theme parks. Also keep in mind that, say, a roller coaster is a utilitarian object. — Alexis Jazz (ping me) 16:11, 11 April 2020 (UTC)

The wrong law[edit]

Built before the invention of copyright

@JSutherland (WMF): I have some counter arguments..

The focus of this piece is on German Freedom of Panorama law. That's very interesting and all, but doesn't necessarily apply. Take w:Corbiac chapel as a an example. A user who claims to own the chapel complained about several photos of it that were uploaded to Commons. But FoP does not apply: the chapel was built in the 13th century, well before the invention of copyright as a concept!

The statement The limiting right here is related to the criterion “public”, which is taken to mean that the photographic work must be able to be observed from a public place. is, I believe, correct. The following statement On the other hand, if the artist stood on the balcony of a privately owned apartment across the street (being not a public place), and then took a photograph of the same private property then their work contravenes German copyright law as it no longer falls under the exception carved out by the UrhG. I doubt.

Imagine I am standing on a public road and I take a picture of a building. No problem. Now I take a few steps back, away from the building I want to photograph, and I find myself standing on someone else's lawn. I zoom in a bit with my camera and take the very same picture of the building. Are you going to tell me the first picture is free and the second one isn't? Sure, whoever owns that lawn may or may not release the hounds, but what about the photo? And does it matter if the building is out of copyright?

I think FoP should be interpreted as "observed from a public place". Exactly where the photographer is located doesn't quite matter, as long as the resulting shot doesn't cover anything that couldn't be observed from a public place. The referred case of the Hundertwasserhaus is rather complicated. The building is still under copyright and it is "now forbidden for the Hundertwasser Non-Profit Foundation to disseminate any illustration or replica of the house without acknowledging Krawina as co-creator". It is unclear why FoP in Austria appears to have been invalidated, but (without looking up the actual case) I'm guessing the issue here is the dissemination of illustrations or replicas of the house, which are not merely reproductions but rather derivative works. I'd think the Hundertwasser Non-Profit Foundation is still allowed to sell photos of the house. Also, standing on "the balcony of a second privately owned apartment across the street" may result in a photograph that depicts aspects of the house not visible when taking a photo from a public place. So in that particular case, there may be some merit to that, but not because the photographer is standing on private property per se.

The real question is about privacy laws. And I suspect (not a lawyer eh!) that as long as you're not taking photos of anything that could be regarded as a violating privacy (photos of people's trash, mail, license plates, that sort of thing) I don't believe there could be any issue. A comparison I made before: what if I break into a bank and take a photo of a bar of gold and upload that to Commons? There is no privacy violation there. I'm going to jail for, you know, breaking into a bloody bank and messing with their gold, but that photo doesn't violate anyone's privacy or copyright. — Alexis Jazz (ping me) 16:54, 11 April 2020 (UTC)

Privacy expectation[edit]

I think we should think of spaces where privacy is expected and owner can control who has acces and view of these spaces. Consider the case where the owner wants to sunbath naked or has some other private activity. He has to take account not only of what the public can see (from public space/street) but also what the neigbours can see from their appartement. (without any special efforts such as climbing on their roof or using ladders) It is also not ok if the photografer in the street (public space) makes special effort such as climbing in trees or using ladders to look into the private space. Even if it is from a public space. Likewise the use of drones is problematic. When are they in public space and is a high view point allowed? I think the expectation of privacy is an important guiding principle. I dont know if it is a legal principle, but I think it is a moral one. The use of a strong tele to penetrate private space is also problematic. (spying is not allowed)Smiley.toerist (talk) 12:29, 15 April 2020 (UTC)